United States obscenity law

United States obscenity law deals with the regulation or suppression of what is considered obscenity. In the United States, discussion of obscenity revolves around what constitutes pornography and of censorship, but also raises issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. The States have a direct interest in public morality and have responsibility in relation to criminal law matters, including the punishment for the production and sale of obscene materials. State laws operate only within the jurisdiction of each state, and there are a wide differences in such laws. The federal government is involved in the issue indirectly, by making it an offense to distribute obscene materials through the post, to broadcast it,[1] as well as in relation to importation of such materials.

Most obscenity cases in the United States in the past century have revolved around images and films, but there have also been many cases that dealt with textual works as well, most infamously that of the 18th century novel Fanny Hill. Because censorship laws enacted to combat obscenity restrict freedom of expression, crafting a legal definition of obscenity presents a civil liberties issue.

Legal issues and definitions

The 18th century book Fanny Hill has been subject to obscenity trials at various times (image: plate XI: The bathing party; La baignade)

The sale and distribution of obscene materials had been prohibited in most American states since the early 19th century, and by federal law since 1873. Adoption of obscenity laws in the United States at the federal level in 1873 was largely due to the efforts of Anthony Comstock, who created and led the New York Society for the Suppression of Vice. Comstock's intense lobbying led to the passage of an anti-obscenity statute known as the Comstock Act which made it a crime to distribute "obscene" material through the post. It also prohibited the use of the mail for distribution of birth control devices and information. Comstock was appointed postal inspector to enforce the new law.[2] Twenty-four states passed similar prohibitions on materials distributed within the states.[3] The law criminalized not only sexually explicit material, but also material dealing with birth control and abortion.[4] However, the legislation did not define "obscenity", which was left to the courts to determine on a case by case basis.

Legally, a distinction is made between socially permitted material and discussions that the public can access on the one hand and obscenity, access to which should be denied, on the other. There does exist a classification of those acceptable materials and discussions that the public should be allowed to engage in, and the access to that same permitted material—which in the areas of sexual materials ranges between the permitted areas of erotic art (which usually includes "classic nude forms" such as Michelangelo's David statue) and the generally less respected commercial pornography. The legal distinction between artistic nudity and permitted commercial pornography (which includes sexual penetration) deemed "protected forms of speech", versus "obscene acts", which are illegal acts and separate from those permitted areas, is usually predicated on cultural factors. However, no such specific objective distinction exists outside of legal decisions in federal court cases where a specific action is deemed to fit the classification of obscene and thus illegal. The difference between erotic art and (protected) commercial pornography, vs. that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subject to decisions within local US federal districts and contemporary moral standards.

In fact, federal obscenity law in the U.S. is highly unusual in that not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test", below) that all but guarantees that something that is legally obscene in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and community standards has created significant controversy in the legal community. (See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996))

Even at the federal level, there does not exist a specific listing of which exact acts are to be classified as obscene outside of the legally determined court cases. Title 18, chapter 71 of the USC deals with obscenity, the workings out of the law described in this article, most notably the aforementioned Miller test.

Definition of obscenity

Although lower courts in the U.S. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford upheld the obscenity conviction of D. M. Bennett using the Hicklin test, that the constitutionality of the Comstock Law became firmly established.[5]

In Rosen v. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."[6]

whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.[7]

In 1964, in Jacobellis v. Ohio, Justice Potter Stewart in applying the Roth test pointed out that "community standards" applicable to an obscenity are national, not local standards. He found that the material in question is "utterly without redeeming social importance". Also, in attempting to classify what material constituted exactly "what is obscene," infamously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced…[b]ut I know it when I see it..."[8] In Memoirs v. Massachusetts (1966) (dealing with the banning of the book Fanny Hill) the Court applied the Roth-Jacobellis test to determine that though the other aspects of the test were clear, the censor could not prove that Fanny Hill had no redeeming social value.[9]

In 1973, the Supreme Court in Miller v. California established the three-tiered Miller test to determine what was obscene (and thus not protected) versus what was merely erotic and thus protected by the First Amendment. Delivering the opinion of the court, Chief Justice Warren Burger wrote:

The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[10]

Justice Douglas wrote a dissenting opinion that eloquently expressed his dissatisfaction with the ruling:

The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed 'to invite dispute,' to induce 'a condition of unrest,' to 'create dissatisfaction with conditions as they are,' and even to stir 'people to anger.' The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard 'offensive' gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment—and solely because of it—speakers and publishers have not been threatened or subdued because their thoughts and ideas may be 'offensive' to some.

Hicklin test (1868): the effect of isolated passages upon the most susceptible persons. (British common law, cited in Regina v. Hicklin, 1868. LR 3 QB 360 - overturned when Michigan tried to outlaw all printed matter that would 'corrupt the morals of youth' in Butler v. State of Michigan 352 U.S. 380 (1957)).

Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time and cannot air indecent material between 6 a.m. and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.

Court cases on obscenity

FCC v. Pacifica (1978) (external link) better known as the landmark "seven dirty words" case. In that ruling, the Court found that only "repetitive and frequent" use of the words in a time or place when a minor could hear can be punished.

In State v. Henry (1987), the Oregon Supreme Court ruled that the Oregon state law that criminalized obscenity was an unconstitutional restriction of free speech under the free speech provision of the Oregon Constitution, with the ruling making Oregon the "first state in the nation to abolish the offense of obscenity."[12]

In Reno v. ACLU (1997), the Supreme Court struck down indecency laws applying to the Internet.

Application of test

In U.S. legal texts, the question of "obscenity" presently always refers to the "Miller test obscenity". As articulated in several sections of 18 USC Chapter 71, the Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use or other transmission of obscenity. However, it has ruled unconstitutional the passing of law concerning personal possession of obscenity per se. Federal obscenity laws at present apply to inter-state and foreign obscenity issues such as distribution; intrastate issues are for the most part still governed by state law. "Obscene articles... are generally prohibited entry" to the United States by U.S. Customs and Border Protection.[13]

At present, there are only two legally protected areas of explicit commercial pornography. The first is "mere nudity" as upheld in "Jenkins v. Georgia, 418 U.S. 153 (1974)" whereby the film Carnal Knowledge was deemed not to be obscene under the constitutional standards announced by Miller. As declared by the judge at trial "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards." This was upheld time and again in later cases including "Erznoznik v. City of Jacksonville FL, 422 U.S. 205 (1975)" in which the city of Jacksonville stated that showing films containing nudity when the screen is visible from a public street or place is a punishable offense. The law was determined to be invalid as it was an infringement of First Amendment rights of the movie producer and theater owners. The second is single male to female vaginal-only penetration that does NOT show the actual ejaculation of semen, sometimes referred to as "soft-core" pornography wherein the sexual act and its fulfillment (orgasm) are merely implied to happen rather than explicitly shown.

In June 2006, the U.S. Federal government in the district of Arizona brought a case against JM Productions of Chatsworth, California in order to classify commercial pornography that specifically shows actual semen being ejaculated as obscene. The four films that were the subject of the case are entitled American Bukkake 13, Gag Factor 15, Gag Factor 18 and Filthy Things 6. The case also includes charges of distribution of obscene material (a criminal act under 18 USC § 1465 - "Transportation of obscene matters for sale or distribution") against Five Star DVD for the extra-state commercial distribution of the JM Productions films in question. The case was brought to trial on October 16, 2007. At the first date of trial, the US DoJ decided not to pursue the JM obscenity case any further, leaving the matter without resolution.[14] While the US DoJ decided to abandon its legal pursuit of the JM productions, U.S. District Court Judge Roslyn O. Silver has forced the legal case against Five Star DVD distributors to continue, whereby the legal classification of whether "sperm showing through ejaculation" is an obscene act and thus illegal to produce or distribute will be definitely answered in order to convict Five Star of being guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution".[15] The jury found that Five Star Video LC and Five Star Video Outlet LC were guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution" for having shipped JM Productions' film Gag Factor 18.[16] However, the specific content in that film that the jury deemed to actually fulfill the legal qualification of being "obscene" has not been specifically stated at this point.

Obscenity v. indecency

The differentiation between indecent and obscene material is a particularly difficult one, and a contentious First Amendment issue that has not fully been settled. Similarly, the level of offense (if any) generated by a profane word or phrase depends on region, context, and audience.

Non image-based obscenity cases in the USA

Obscene texts

While most of the obscenity cases in the United States in the past century have revolved around images and films, there have been many cases that dealt with textual works as well.

The classification of "obscene" and thus illegal for production and distribution has been judged on printed text-only stories starting with "Dunlop v. U.S., 165 U.S. 486 (1897)" which upheld a conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' containing "obscene, lewd, lascivious, and indecent materials", which was later upheld in several cases. One of these was "A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, 383 U.S. 413 (1966)" wherein the book Fanny Hill, written by John Cleland c. 1760, was judged to be obscene in a proceeding that put the book itself on trial rather than its publisher. Another was "Kaplan v. California, 413 U.S. 115 (1973)" whereby the court most famously determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."

However, the book was labeled "erotica" in the 1965 case (206 NE 2d 403) and there a division between erotica and obscenity was made—not all items with erotic content were automatically obscene. Further, the 1965 "John Cleland's 'Memoirs'" case added a further qualification for the proving of "obscenity"—the work in question had to inspire or exhibit "prurient" (that is, "shameful or morbid") interest.

In 1964, the U.S. Supreme Court, in Grove Press, Inc. v. Gerstein, cited Jacobellis v. Ohio (which was decided the same day) and overruled state court findings of obscenity against Henry Miller's Tropic of Cancer. A copyright infringing "Medusa" edition of the novel was published in New York City in 1940 by Jacob Brussel; its title page claimed its place of publication to be Mexico. Brussel was eventually sent to jail for three years for the edition,[17] a copy of which is in the Library of Congress.

In 2005, the U.S. Department of Justice formed the Obscenity Prosecution Task Force in a push to prosecute obscenity cases.[18][19] Red Rose Stories (www.red-rose-stories.com, now defunct), a site dedicated to text-only fantasy stories, became one of many sites targeted by the FBI for shutdown.[20] The government alleged that Red Rose Stories contained depictions of child rape. The publisher pleaded guilty.[21]

Obscene devices

Many U.S. states have had bans on the sale of sex toys, regulating them as obscene devices. For instance, the 1999 Law and Government of Alabama (Ala. Code. § 13A-12-200.1) made it "unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs." Alabama claimed that these products were obscene, and that there was "no fundamental right to purchase a product to use in pursuit of having an orgasm." The ACLU challenged the statute, which was overturned in 2002. A federal judge reinstated the law in 2004. The matter was appealed to the US Supreme Court who in 2007 refused to hear the case, thus the decision of the lower court is enforceable within the state of Alabama.[22] In 2007, a federal appeals court upheld Alabama's law prohibiting the sale of sex toys.[23] The law, the Anti-Obscenity Enforcement Act of 1998, was also upheld by the Supreme Court of Alabama on September 11, 2009.[24]

But other states have seen their sex toy bans ruled unconstitutional in the courts. In 2008 the United States Court of Appeals for the Fifth Circuit ruled a similar Texas statute violated the constitutional right to privacy that was recognized by the U.S. Supreme Court in the Lawrence v. Texas decision.[25] That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices.[26] Alabama is the only state where a law prohibiting the sale of sex toys remains on the books.[27]

Criticism

Federal law forbids obscenity in certain contexts (such as broadcast);[1] however, the law does not define the term.

The U.S. Supreme Court similarly has had difficulty defining the term. In Miller v. California, the court defers definition to two hypothetical entities, "contemporary community standards" and "hypothetical reasonable persons".

The courts and the legislature have had similar problems defining this term because it is paradoxical, and thus impossible to define.

Because the term "obscenity" is not defined by either the statutes or the case law, this law does not satisfy the Vagueness doctrine, which states that people must clearly be informed as to the prohibited behavior.

Because the determination of what is obscene (offensive) is ultimately a personal preference, alleged violations of obscenity law are not actionable (actions require a right).

Because no actual injury occurs when a mere preference is violated, alleged violations of obscenity law are not actionable (actions require an injury).

It should be noted that in light of the recent en banc decision of the Third Circuit Court of Appeals, as brought by Judge Lancaster in the original US vs. Extreme Associates case, only the US Supreme Court is allowed to revise its earlier decision that established the Miller decision.

The US Supreme Court refused to hear, effectively rejecting, such modification in August 2006 when the same en banc decision by the Third Circuit was sent to the US Supreme Court for review.[1] Thus the open ended conflicting notes above remain in effect for obscenity prosecutions.

Public funding/public places

Congress passed a law in 1990 that required such organizations such as the National Endowment of the Arts (NEA) and National Associations of Artists Organizations (NAAO) to abide by general decency standards for the "diverse beliefs and values of the American public."[29]

In 1998, Congress made a decision in the case of National Endowment for the Arts vs. Karen Finley, which upheld the general standards and decency law within the United States.

Government owned exhibition spaces are available under the Supreme Court's "public forum" doctrine. This doctrine explains that citizens within the United States have access to display in such public places such as lobbies of public buildings, theatrical productions, etc.

Even with this law in place it is hard for artists who have addressed sexually explicit work in work because of complaints which are generally in the form of "inappropriate for children" or seen as a form of "sexual harassment." Therefore, the arts works are removed and at times there are official "no nudity" policies that are put in place.[30]

When these decisions are taken to court on account of free expression the venues are often looked at to see if they are an actual "designated public forum." If it is then public officials have violated the First Amendment rights on the individuals. The other side is if the court finds that there is "no designated public forum" where government officials have the right to exclude and or censor the work.[30]

Additional restrictions on sexual expression

In the Miller decision the use of the words "contemporary community standards" means that the law evolves along with social mores and norms. This has been shown throughout the booming business of the pornography industry along with commercial pornography by people such as amateurs and publishers of personal websites on the World Wide Web. Indirect government control such as restrictive zoning of adult video stores and nude dancing were put in place because obscenity convictions were harder to come by and not protected by the First Amendment. Similarly a set of rules was put in place to control erotic dancing, where legal, so that all dancers must either wear "pasties" or "g-strings" as shown in the 1991 case of Barnes v. Glen Theatre.[29]

State laws

The laws on pornography are regulated by the state, meaning that there is not a national law for pornography. Many states[which?] have restrictions on buying books and magazines of pornography. Between 1995 and 2002, almost half of the states were considering bills to control internet pornography, and more than a quarter of states enacted such laws.[31] In many states,[which?] other laws controlling access to pornography exist, such as exposing minors to indecent material.

Censorship in schools, universities, and libraries

Schools, universities, and libraries receive government funds for many purposes, and some of these funds go to censorship of obscenity in these institutions. There are a few different ways in which this is done. One way is by not carrying pornographic or what the government deems obscene material in these places; another is for these places to purchase software that filters the internet activity on campus. An example is the federal Children's Internet Protection Act (CIPA). This mandates that all schools and libraries receiving federal aid for internet connections install a "technology protection measure" (filter) on all computers, whether used by children or adults. There are some states that have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would fund censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.[32]

Child pornography

Child pornography refers to images or films (also known as child abuse images[33][34][35]) and in some cases outside of the United States, writings[35][36][37] depicting sexually explicit activities involving a child; as such, child pornography is a record of child sexual abuse.[38][39][40][41][42][43] Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography,[38][39][41][42][43][44][45] and several professors of psychology state that memories of the abuse are maintained as long as visual records exist, are accessed, and are "exploited perversely."[43][44]

Child pornography is widely considered extremely obscene.

Censorship of film

This is most notably shown with the "X" rating that some films are categorized as. The most notable films given an "X" rating were Deep Throat (1972) and The Devil in Miss Jones (1973). These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values. Some state authorities issued injunctions against such films to protect "local community standards"; in New York the print of Deep Throat was seized mid-run, and the film's exhibitors were found guilty of promoting obscenity.[46]This Film Is Not Yet Rated is a 2006 film which discusses disparities the filmmaker sees in ratings and feedback: between Hollywood and independent films, between homosexual and heterosexual sexual situations, between male and female sexual depictions, and between violence and sexual content. They found that films have also been further censored than their heterosexual, male, white counterparts due to gay sex (even if implied), African American sex, or female pleasure as opposed to male pleasure.

Possession of obscene material

In 1969, the Supreme Court held in Stanley v. Georgia that State laws making mere private possession of obscene material a crime are invalid,[47] at least in the absence of an intention to sell, expose or circulate the material.

^"State Laws". USLegal. Archived from the original on 17 July 2014. Retrieved 13 March 2015. State laws on Internet pornography have evolved rapidly. Prior to the rise in popularity of the Internet, most states already had laws on the books regulating age limits for purchasing pornography as well as statutes criminalizing child pornography. Many legislatures saw a need for legislation to respond to the vicissitudes of new technology. Between 1995 and 2002, nearly two dozen states considered bills that would control in some fashion access to Internet pornography. More than a dozen states enacted them.

^ abSheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. p. 20. ISBN 0-470-02800-9. 'Child pornography is not pornography in any real sense; simply the evidence recorded on film or video tape - of serious sexual assaults on young children' (Tate, 1992, p.203) ... 'Every piece of child pornography, therefore, is a record of the sexual use/abuse of the children involved.' Kelly and Scott (1993, p. 116) ... '...the record of the systematic rape, abuse, and torture of children on film and photograph, and other electronic means.' Edwards(2000, p.1)

^ abKlain, Eva J.; Heather J. Davies; Molly A. Hicks (2001). Child Pornography: The Criminal-justice-system Response. National Center for Missing & Exploited Children. Because the children depicted in child pornography are often shown while engaged in sexual activity with adults or other children,they are first and foremost victims of child sexual abuse.

^ abcWortley, Richard; Stephen Smallbone. "Child Pornography on the Internet". Problem-Oriented Guides for Police. No. 41: 17. The children portrayed in child pornography are first victimized when their abuse is perpetrated and recorded. They are further victimized each time that record is accessed.

^ abSheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. p. 9. ISBN 0-470-02800-9. ...supplying the material to meet this demand results in the further abuse of children Pictures, films and videos function as a permanent record of the original sexual abuse. Consequently, memories of the trauma and abuse are maintained as long as the record exists. Victims filmed and photographed many years ago will nevertheless be aware throughout their lifetimes that their childhood victimization continues to be exploited perversely.